Newsroom has done a terrific job of trying to get to the bottom of the allegation that National MP Todd Barclay secretly recorded his former electorate agent Glenys Dickson.

Newsroom claims Barclay left a dictaphone in the Gore electorate office and recorded Dickson’s side of phone conversations. It suggests that he may have recorded conversations between electorate staff too. It suggests he used the material against her in some unspecified way. It’s not clear whether this happened only once or multiple times.

Barclay has denied all this. But it seems that not everything he said has turned out to be entirely accurate. (For instance, he’s quoted saying he would cooperate with any police investigation, but according to police, he refused to be interviewed).

It’s a crime to use a recording device to record a private conversation that you are not a party to. It sure sounds like Barclay has committed that crime. Newsroom certainly asserts it. It looks like Barclay (or someone) told Bill English about it, and Newsroom has texts where Bill English talks about this. So why did the police, after investigating, decide that it didn’t have enough evidence to prosecute?

I don’t know. But here are a few things that I suppose might be murky, or might provide a defence:

Did Barclay do it intentionally? All we know from the Bill English texts is that Barclay left a dictaphone going in the office. It’s conceivable that he didn’t mean to. Maybe he was recording a meeting and left it behind by mistake. This was what cameraman Bradley Ambrose said happened when he recorded the PM in the teapotgate saga. If Barclay did that, he wouldn’t commit an offence, even if he went on to use the material he’d inadvertently recorded. But Barclay isn’t claiming that’s what happened, and it has to be said, it doesn’t look very likely. And if all the other elements of the offence were in place, you wouldn’t expect the police to say they lacked evidence because of the off-chance it was an accident.

made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication

It’s not private if

any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

So… this may turn on things like whether Dickson was in her own office and if so whether the door was closed and how loudly she was speaking; or whether other desks and people nearby; whether people often walked by; if it was a bit of a thoroughfare, whether Dickson took steps on that occasion to ensure that no-one overheard her; and whether what was discussed was private or sensitive (if she was ordering a photocopier, for example, it’s unlikely that the circumstances indicated a desire for privacy). Maybe the police didn’t have enough to be confident about this, especially as it looks like they didn’t have a copy of the recording. In fact, it’s not clear they even asked for it. Still, you might expect that Dickson herself could shed light on quite a few of these questions. And she seemed to have some idea of what exactly had been recorded, as she said Barclay knew things he could only know through the recording and used the material against her in some way.

[Update: there even seems to be some question about whether Barclay was in the room at the time. If he was, there’s no offence. All the reporting seems premised on that not being the case though]

Is an interception of half a conversation (ie one side of a phone call) an interception at all? The offence is to record a “private communication”, and the context of the section is all about communications between people. What if you’re only recording half? I think this is still intercepting a communication, but I can imagine someone trying to argue that it’s necessary to capture a whole exchange for the communication to be an offence. I doubt this is the sticking point for the police, though: they said there was a problem with insufficient evidence, and this is an interpretation issue.

I haven’t seen the police advice. Maybe I’ve missed something. But I have to wonder about their conclusion. Isn’t it about now that Graham McCready usually puts in an appearance?

I note, in any event, that this issue about the Crimes Act doesn’t exhaust the legal analysis here. There are also possible breaches of the Privacy Act (we might start with the general obligation to let people know when you’re collecting information, and the obligation to do so in a way that is lawful, fair and not unreasonably intrusive). There are also possible tort claims for intrusion and breach of confidence. Then there are employment issues about duties of trust and confidence (though how that plays out given that the Parliamentary Service is the employer, I’m not sure; but I’d expect at least a duty to investigate properly).